Helping Solve the Disclosure Challenge

It’s one of the most damaging images in the entire criminal justice system: a young man walks free from court because evidence has come to light that makes it very clear that he was innocent of the serious sexual offence with which he had been charged all those months ago - and the police had the exculpatory information in their possession all along but failed to share it with the defence legal team. It is a tragedy from every direction: a defendant wrongly accused, a victim put through months of anxiety with no outcome, a system undermined, other - unconnected - victims discouraged. And public money - lots and lots of it - wasted.

There have been many causes of disclosure failure in the past. On occasions - thankfully extremely rare occasions - it’s been demonstrated that information was withheld deliberately with the intention of convicting the innocent, or those perceived to be guilty. Much more common is a failure caused by officers who lack the training and awareness to discharge their legal responsibilities. Successive attempts have been made to reduce the instance of these failures but a new challenge has been emerging over recent years that threatens to eclipse the other causes of disclosure difficulty. That challenge is the Digital Age.

The benefits of our digital society have been many and their impact extraordinary. The sheer volume of data that impacts our daily lives simply could not have been foreseen a generation ago. And that’s no less true of policing than it is of any other activity. People retiring from policing today began their service when evidence from a computer was a rarity - indeed something of a curiosity: probably best handled in a lab and almost certainly worth inviting colleagues over to come and view.

Yet the volumes of digital evidence encountered today is staggering. The computing power and amount of data held in a modern mobile phone handset way exceed the amount that was required to first power a man to the moon in 1969. Indeed, more than ninety percent of the world’s data was created in the last two years. It produces a problem for officers: not that the officer necessarily lacks the willingness to disclose, nor the desire or the training to do so. It’s that the officer has so much data that there’s no realistic way of knowing about it all and appreciating its significance. The problem here is that the police simply may not know what they have in their possession and when you’re in that position, it’s virtually impossible to discharge your legal responsibilities.

It’s almost certain that the challenge of disclosure will never be solved completely but many things have the potential to help improve on the current situation. Police resourcing is important: specifically, the availability of trained staff with sensible and manageable workloads in key investigative roles. In addition, better training will encourage every investigator to consider disclosure from the very start of every investigation. Strong leadership matters, too: setting the tone and influencing the culture. It’s likely that some change in the law may be needed to allow an analogue criminal justice system to adapt to a digital era. And a serious dialogue on procedure will be required to ensure that judicial expectation is managed and that pragmatic solutions are found. Then there’s technology.

As the supplier of a Digital Evidence Management system, Hitachi Vantara has been baking disclosure considerations into its solution since the very beginning. It’s been obvious to us that bringing together all the digital evidence in a case - into a kind of “digital shopping basket” - provides a powerful starting point in the effort to get disclosure right. Every piece of digital evidence that is received into the Hitachi Digital Evidence Management (HDEM) solution is recorded with the future in mind, whether that’s the eventual need to comply with MoPI information management requirements or the need to adhere to the provisions of the Criminal Procedure and Investigations Act 1996. Of course, it’s seldom possible to determine at the outset of an investigation whether an exhibit is sensitive or non-sensitive, whether it might undermine theprosecution case and - ultimately - whether it should be disclosed. But if the system requires investigators to reach a decision on initial classification (& then keep that under review at regular intervals), then the chances of disclosure becoming a post-charge afterthought are greatly reduced. And experience has taught policing that the sooner disclosure is started in a case, the better it is done.

HDEM gives the investigator other disclosure advantages, too. The first of these is the power of having all the evidence together in one place. HDEM’s source-agnostic ingestion capability can hoover up digital material from virtually any source and make it visible in a single, simple screen. This approach significantly reduces the chances of missing important data - whether exculpatory or incriminating – as in the way things are done today, where i.e. the evidence sits across a range of systems and storage media, from stand-alone police legacy systems to boxes of CD-ROMs on the floor.

The benefit of simple storage is multiplied by the system’s ease of use. An intuitive, straightforward and clear user interface, workflow and presentation of data will be a refreshing change to many investigators. And when you add tothat a powerful, intelligent, federated search capacity, the result is a system that goes further than any has before to reduce the risk of failure and make a complex responsibility as achievable as it has ever been.

The challenges of disclosure have been with the police for a long time and nobody is suggesting that a clever computer system will banish them overnight. That will require a concerted, determined effort involving many players over a sustained period. And technology alone will never provide the answer. But in a digital world, there can be no answer without better technology: powerful yet simple computing power, harnessed to benefit investigators and help British policing retain the confidence on which it depends.